High v. Rabsatt

IN THE MATTER OF JAVON HIGH, RESPONDENT,v.CALVIN RABSATT, AS SUPERINTENDENT OF RIVERVIEW CORRECTIONAL FACILITY, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: October 23, 2009

Before: Peters, J.P., Spain, Lahtinen, Kane and Malone Jr., JJ.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 2, 2008 in St. Lawrence County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Department of Correctional Services calculating petitioner's prison sentence.

In 2007, petitioner was sentenced as a second felony offender to two years in prison followed by one year of postrelease supervision upon his conviction of attempted criminal possession of a controlled substance in the fifth degree. Neither the sentence and commitment order nor the sentencing minutes specified the manner in which this sentence was to run relative to petitioner's prior undischarged prison term. The Department of Correctional Services treated petitioner's 2007 sentence as running consecutively to his prior undischarged term, prompting petitioner to commence a habeas corpus proceeding challenging the legality of his continued incarceration and contending that he had improperly been denied parole release. Shortly thereafter, this Court decided People ex rel. Gill v Greene (48 AD3d 1003 [2008], revd 12 NY3d 1 [2009], cert denied sub nom. Gill v Rock, ___ US ___ [Oct. 5, 2009]), and petitioner filed a supplemental petition challenging the calculation of his prison term. Supreme Court converted the matter to this CPLR article 78 proceeding, treated the supplemental petition as a motion to amend the petition and, following service of respondent's answer thereto, annulled the sentencing computation. This appeal by respondent followed.

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